Can a Court Grant a Divorce For a Marriage That Never Legally Existed?

by familyllb on July 15, 2013

Can a Court Grant a Divorce For a Marriage That Never Legally Existed?

In a recent decision called Azam v. Jan, a series of Alberta courts had to grapple with an interesting issue: Can a court grant a divorce in a marriage that was never legally valid in the first place?

When they met online in 2002, the man was living in Canada, and the woman was living in Pakistan. She had found his profile on a marriage website that he had set up in 1999. They got married in Pakistan in 2007 and she moved to Canada to be with him.

Here was the hitch: at the time of that marriage the man was already married to (and had three children with) another woman. He had married that woman in

Pakistan in 2000, and was currently living with her in Calgary.

At one point the man (who incidentally is a lawyer) advised the woman that his “other wife” was coming to live with them in Calgary. Apparently this did not go over well, and the woman left in April of 2008. She asked the court for a divorce, and claimed for spousal support. The court summed up the dispute this way:

[The woman] argues that [the man] was divorced when he married her and produced a Pakistani national identity card to the officiant at the time. [The man] says otherwise and points to his ongoing marriage to [the first wife] in 2000, the mother of his three children, who apparently has little, if any, knowledge of this dispute.

The legal problem was this: Polygamous marriages are permitted in Pakistan, but not in Canada. If the man’s first marriage was still valid, then the second marriage would be considered polygamous in Canada, so the second woman would have no legal basis for claiming spousal support. On the other hand, if the man was indeed divorced from the first wife when he married the second woman, then the union was valid and she might be entitled to support.

All of this gave rise to complex legal questions, including constitutional and international jurisdiction issues, and the issue of whether a Canadian court has the ability to grant a divorce in an actively polygamous marriage. The matter was first heard by a trial court, then by the Court of Appeal (which ordered a new trial), and then by a trial court again.

That last court looked at the facts anew. At the time of marriage to the woman, the man and the first wife were living together in Calgary and holding themselves out as a married couple. The marriage to the second woman apparently took place in Pakistan without the first wife’s knowledge; in contrast the second woman did understand what she was getting into. The court explained:

Although she was visiting her family in Pakistan when [the man] and [the woman] had their wedding, there was no evidence that [the first wife] was aware of this ceremony either at the time it took place or since. In fact, [the man] testified that he did not tell [the first wife] about it. She was not called to testify in these proceedings. It is not disputed that [the first wife] remained in Pakistan for several weeks beyond her annual family visit, due to the health status of one of her parents.

While [the first wife] remained in Pakistan,[the woman] and [the man] travelled to Calgary on November 27, three days after their wedding. Initially they stayed in the home which [the man] shared and continues to share with [the first wife].

However, [the woman] moved to an apartment shortly before [the first wife’s return] in the spring of 2008. By that time, [the woman] was pregnant with [the man’s] child but sadly the baby died shortly after birth in July, 2008. The relationship between [the woman] and [the man] had broken down by that time and [the woman] severed the relationship thereafter. …

I do not accept [the woman’s] evidence that she thought she was marrying a divorced man in 2007. She is an educated, well-spoken, confident woman having spent time in western countries such as the United States and Australia where she took a master’s degree in education. In any event, [the woman] has acknowledged that her marriage to [the man] was at the very least, a legal polygamist marriage under Pakistani law.

The illegality in Canada of the second union left the court with a legal conundrum. But rather than grant a divorce for a non-existent marriage, it resorted to resolving the issue on public policy grounds, in order to achieve a fair result. In declaring the second marriage to be void from the get-go, the court wrote:

The only thing known with any certainty is that the [second] marriage is not recognized as valid under Canadian conflict of law rules because polygamy is not legal in Canada. Recognition of this foreign marriage cannot be forthcoming because [the woman] cannot prove the “essential validity” of it. She seeks a divorce judgment and since the marriage cannot be proven to the satisfaction of this Court, her application must fail. However, there is one other certainty in these proceedings; this marriage is also a nullity under Canadian law.

Accordingly, in consideration of all of the foregoing, I take jurisdiction on public policy grounds. I acknowledge this marriage for the limited purpose of providing an adequate remedy having been satisfied that whatever its foreign legality, it is invalid in Canada. The fact that this union has broken down leaving the parties in legal limbo, is not in dispute.

Accordingly, [the woman’s] request for a judgment for divorce is dismissed. I declare the marriage been [the woman and the man] to be void ab initio and grant an order of annulment.

For the full text of the decisions, see:

Azam v. Jan, 2012 ABCA 197 http://canlii.ca/t/frt8r

Azam v. Jan, 2013 ABQB 201 http://canlii.ca/t/fxj8b

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.